RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          18 August 2005
      DOCKET NUMBER:  AR20040011455


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mr. Jessie B. Strickland          |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James E. Vick                 |     |Chairperson          |
|     |Mr. Ronald J. Weaver              |     |Member               |
|     |Mr. Robert Rogers                 |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his discharge under other than honorable
conditions be upgraded to a more favorable discharge.

2.  The applicant states that he was young and very immature at the time
but he has kept his nose clean since his discharge and he feels very
strongly about his standing in his community and would appreciate an
upgrade of his discharge.

3.  The applicant provides no additional documents with his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 16 December 1983.  The application submitted in this case is
dated 7 December 2004.

2.  Title 10, U.S. Code, Section 1552(b), provides that applications for
correction of military records must be filed within 3 years after discovery
of the alleged error or injustice.  This provision of law allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitation if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  He was born on 3 June 1963 and enlisted in Knoxville, Tennessee, on
1 December 1981 for a period of 3 years, enlistment in the pay grade of E-3
and training as a smoke operations specialist.  He indicated at the time of
his enlistment that he was single.

4.  He completed his one-station unit training (OSUT) at Fort McClellan,
Alabama, and was transferred to Fort Irwin, California, on 9 May 1982.  The
applicant requested and received a stateside swap with another soldier
stationed at Fort Carson, Colorado.

5.  On 10 December 1982, the applicant departed Fort Irwin at his own
expense and reported to Fort Carson on 22 December 1982.  A dependent
assistance questionnaire completed by the applicant on 17 June 1983
indicated that he was still single.

6.  The applicant went absent without leave (AWOL) on 6 July 1983 and
remained absent until he returned to military control on 12 July 1983.  The
record is silent as to any punishment imposed; however, his records contain
a Commander’s Report of Inquiry/Unauthorized Absence (DA Form 4384) which
indicates that the applicant was married, that his wife resided in Barstow,
California (near Fort Irwin), and that possible contributing factors
causing his AWOL was marital strife and indebtedness.

7.  The applicant again departed AWOL on 17 July 1983 and remained absent
in a deserter status until he surrendered to military authorities on 13
November 1983 and charges were preferred against him for his AWOL offense.
The maximum punishment he could have received if convicted of the offense
for which he was charged was a dishonorable discharge, total forfeiture of
pay and allowances, confinement at hard labor for 1 year and reduction to
the lowest enlisted pay grade.

8.  On 16 November 1983, after consulting with defense counsel, the
applicant submitted a request for discharge for the good of the service,
under the provisions of Army Regulation 635-200, chapter 10, in lieu of
trial by court-martial.  In his request he indicated that he understood the
charges that had been preferred against him, that he was making the request
of his own free will, without coercion from anyone and that he was aware of
the implications attached to his request.  He also admitted that he was
guilty of the charges against him or of lesser included offenses which
authorized the imposition of a bad conduct or dishonorable discharge.
Additionally, he acknowledged that he had been advised of the maximum
punishment he could receive for his offense if convicted by the
contemplated court-martial.   He acknowledged that he understood that he
could receive a discharge under other than honorable conditions and that he
might be deprived of all benefits as a result of such a discharge.

9.  He further elected to submit a statement or explanation in his own
behalf, whereas he asserted that he was now separated from his wife and
that he had problems the Army could not help him with so he decided to try
and take care of them legally.  However, he could not go anywhere or take
care of the problems he was facing.  He went on to state that he did not
desire to remain in the Army and that he just wanted take care of his life
and square it away the way it should be.

10.  The applicant’s commander indicated that the applicant went AWOL
because he was unable to cope with the financial and marital problems he
was experiencing, that he was no longer motivated to return to duty and
that he lacked the potential of becoming a productive soldier.  The entire
chain of command recommended that his request be approved.

11.  The appropriate authority (a major general) approved his request on
29 November 1983 and directed that he be discharged under other than
honorable conditions.

12.  Accordingly, he was discharged under other than honorable conditions
on  16 December 1983, under the provisions of Army Regulation 635-200,
chapter 10, for the good of the service – in lieu of trial by court-
martial.  He had served    1 year, 8 months and 14 days of total active
service and had 124 days of lost time due to AWOL.

13.  There is no evidence in the available records to show that he ever
applied to the Army Discharge Review Board for an upgrade of his discharge
within that board’s 15-year statute of limitations.

14.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 10 of the regulation provides,
in pertinent part, that a member who has committed an offense or offenses
for which the authorized punishment includes a punitive discharge may at
any time after charges have been preferred, submit a request for discharge
for the good of the service in lieu of trial by court-martial.  A condition
of submitting such a request is that the individual concerned must admit
guilt to the charges against them or of a lesser included offense which
authorizes the imposition of a bad conduct or dishonorable discharge and
they must indicate that they have been briefed and understand the
consequences of such a request as well as the discharge they might receive.
 A discharge under other than honorable conditions is normally considered
appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation was accomplished in
compliance with applicable regulations with no indication of procedural
errors which would tend to jeopardize his rights.

2.  Accordingly, the type of discharge directed and the reasons therefore
were appropriate considering all of the available facts of the case.

3.  The applicant’s contentions have been noted by the Board; however, they
are not sufficiently mitigating to warrant relief when compared to his
overall record of undistinguished service and the length of his
unauthorized absence.

4.  After being afforded the opportunity to assert his innocence before a
trial by court-martial, he voluntarily requested a discharge for the good
of the service in hopes of avoiding a punitive discharge and having a
felony conviction on his records.  In doing so he admitted guilt to the
charges against him.

5.  In order to justify correction of a military record the applicant must
show to the satisfaction of the Board, or it must otherwise satisfactorily
appear, that the record is in error or unjust.  The applicant has failed to
submit evidence that would satisfy this requirement.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 16 December 1983; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 15 December 1986.  However, the applicant did not file
within the 3-year statute of limitations and has not provided a compelling
explanation or evidence to show that it would be in the interest of justice
to excuse failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__JEV___  __RJW___  __RR____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented does not demonstrate
the existence of a probable error or injustice.  Therefore, the Board
determined that the overall merits of this case are insufficient as a basis
for correction of the records of the individual concerned.



2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.



                                  James E. Vick
            ______________________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040011455                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050818                                |
|TYPE OF DISCHARGE       |(UOTHC)                                 |
|DATE OF DISCHARGE       |1983/12/16                              |
|DISCHARGE AUTHORITY     |AR635-200/CH10 . . . . .                |
|DISCHARGE REASON        |GD OF SVC                               |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES                  |689/A70.00                              |
|1.144.7000              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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